The Post’s View

Virginia’s ‘21-day rule’ needs to go

AN INNOCENT MAN sits in a Virginia prison because of an archaic and draconian state law and balky officials in Richmond who will not move off the dime to free him.

We wrote last week about the case of Johnathan Montgomery, who was convicted in 2008 of sexual assault on the strength of testimony from a teenage girl who has now recanted. The accuser, charged with perjury, is free while she awaits trial. Mr. Montgomery, sentenced to 7 1 / 2 years, is innocent but can’t get out of prison. This is ludicrous.

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The immediate cause of the legal logjam keeping him behind bars is Virginia’s noxious 21-day rule, which prohibits trial judges from reviewing newly discovered evidence if it is presented more than three weeks after sentencing. Exceptions are made only in the case of biological evidence such as DNA.

This month, the judge who sentenced Mr. Montgomery to prison in 2008 was presented with new evidence that his accuser, Elizabeth Paige Coast, had admitted lying about her accusation. Appalled, Judge Randolph T. West ordered the sentence vacated and the inmate freed.

But the evidence came to light only in recent weeks, when Ms. Coast came clean about her deception. New evidence or not, the 21-day rule applies. So Judge West was acting beyond his authority, as the state attorney general’s office ruled, and his order was voided. When Mr. Montgomery’s relatives attempted to pick him up from prison, they left empty-handed.

Gov. Robert F. McDonnell (R) has the authority to pardon Mr. Montgomery and has indicated he is willing to do so. But he is awaiting a formal pardon request or the application for a declaration of innocence to be made to the state’s Court of Appeals. Barring a pardon from the governor, Mr. Montgomery could have to wait for a hearing by the Court of Appeals, which could take weeks or months.

The root problem is the 21-day rule, which lawmakers intended to provide a stamp of finality of a court’s verdict and sentence. In fact, it acts as an impediment to justice in cases such as Mr. Montgomery’s.

Virtually no other state has such an inflexible statute. Texas has a 30-day rule but also a procedure that allows a court to release a prisoner on bond if the prosecution and defense agree that a convict was wrongly convicted. In the case of Mr. Montgomery, the prosecutor’s office in Hampton, which brought the original charges against him, conceded the testimony against him was concocted and the verdict was a miscarriage of justice. Still, the judge could do nothing to vacate his original sentence.

Virginia lawmakers have tried in the past to undo the 21-day rule, without success. Perhaps the embarrassment and travesty of the Montgomery case will convince the General Assembly of the folly of retaining a law tailor-made to ensure that justice is obstructed.

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